Telcos Win Warrantless Wiretap War

By Roy Mark |
Posted 2008-07-09

Congress has proved once again the joke is on us when it comes to lawmakers protecting the constitutional rights of U.S. citizens. After years of telephone companies turning over our phone calls and e-mails without a proper warrant for government surveillance, Congress has patted the telcos on the head, praised them as patriots and shielded them from civil lawsuits complaining of privacy rights violations.

As President Bush recently explained, "We may not be able to secure the private sector's cooperation with our intelligence efforts. If you cooperate with the government and then get sued for billions of dollars because of the cooperation, you're less likely to cooperate. And obviously we're going to need people working with us to find out what the enemy is saying and thinking and plotting and planning."

Or, as Sen. Orrin Hatch of Utah said July 9 when the Senate debated a new Foreign Intelligence Surveillance Act granting retroactive immunity for the telcos' participation in Bush's warrantless wiretapping program, "If you don't have Al-Qaida on your speed dial, you have nothing to worry about."

The politicians, being politicians, argue that the legislation does not give the AT&Ts and Verizons of the world a get out of jail free card. Under the bill, a district court will review the authorizations the White House used to induce telephone carriers to participate in the program. If the court determines the authorizations existed, the more than 40 civil cases pending against the carriers will not proceed.

Congress does not seem to care if those White House authorizations were legal in the first place. "They acted in good faith based on documentation provided by the administration," Sen. Kit Bond opined.

This doesn't even pass the sounds-good test. One wonders if the high-priced telco attorneys ever mentioned to their bosses that even if the president says it is legal, that doesn't make it legal. At least one court has already ruled that the warrantless wiretapping by the White House was illegal.

It is also worth noting that at least one telephone company recognized that what the Bush administration was seeking was fraught with legal peril. According to a number of reports, former Qwest CEO Joe Nacchio refused to put his customers' e-mails and telephone calls at the government's disposal. When the government later came after him hammer-and-tongs for insider trading, Nacchio claimed it was in retaliation for his noncooperation.

"If we do not change course and stand up for our Constitution, for what is best in America, for what we know is right and just, then history will most certainly decide that it was those of us in this body who bore equal responsibility for the President's decisions," Sen. Chris Dodd told his colleagues on the eve of the Senate vote. "For it was us who looked the other way, time and time again."